Being Sued

When you are sued, you first need to decide whether you are going to respond to the lawsuit. If you choose to respond, you have to make sure you do it within the deadline, and you have to decide how you are going to respond. This is a really good time to talk to a lawyer for advice on whether to respond and, if so, how to best handle your case. Click for help finding a lawyer.

You have 30 days AFTER the date you are served to file a response with the court. The 30 days include weekend days and court holidays. If the last day falls on a day that the court is closed, you have until the next day that the court is open.

If you were served by substituted service, meaning the summons and complaint were given to someone else in your household or place of work, and another copy was mailed to you, you have 40 days from the date of the mailing to file your response. BUT before you count on these extra 10 days, make sure the plaintiff’s proof of service says you were substitute served and not personally served. You can find out by calling the plaintiff’s lawyer and asking how the process server claims you were served, and also what date your response is due. Send a fax or letter to the law firm confirming the information you are given.

Only you can decide if it is in your best interests to respond to the lawsuit or not. It can be very helpful to get advice from a lawyer to decide if, and how, to respond.

If you do not respond

If you do not file a response within 30 days after you were served, the plaintiff can file a form called “Request for Default,” which means you have defaulted and can no longer respond to the lawsuit to defend yourself. If there is any part of the case you disagree with, or any amount of money you feel you do not owe, you will not be able to tell the court once you have defaulted.

After a default is entered the plaintiff can ask the court to enter a default judgment against you. The plaintiff can prove his or her case without you disputing what he or she says, and can win up to the amount that he or she asked for in the lawsuit against you.

Then the plaintiff can enforce the judgment against you. This can mean getting money from you by garnishing your paycheck, levying on your bank account, or putting a lien on your house or car. A judgment against you can also show up on your credit report.

You may want to respond when:

You have any defense to the case, like a belief you owe less money than what you are being sued for. The only way to raise this defense is by filing a formal response. For example, if you tried to arrange a payment schedule with the creditor but you were refused, and now you are being sued for attorney’s fees and court costs in addition to the principal amount you owe, the only way to tell the court that you should not have to pay the costs of the lawsuit is by filing a response and raising the defense in your response. If you do not file a response, the party suing you (the plaintiff) can get a judgment against you for the full amount requested in the lawsuit and you will not be able to tell the court why you do not owe it.So, unless you know you owe everything you are being sued for, and you have no other defense you want to raise, you should respond to the lawsuit because that is the only way for you to defend yourself and not have a default judgment against you.

Sometimes defendants file a response even when they owe the money because they want to try to negotiate a settlement with the plaintiff, and by filing a response, they get more time and opportunity to settle. This can work if you are prepared to respond to the discovery requests (on time and if are able to pay something to settle the case.

Sometimes defendants file a response if they think that the plaintiff cannot prove the case. The plaintiff has the initial burden to prove you owe the money. If the plaintiff cannot prove that there was a contract, or that you made certain charges, you may win the case because the plaintiff cannot prove what it alleges in its lawsuit. This may be true in cases where a loan was transferred from one bank to another, then to a collection agency, and the paperwork has been lost. If you are not able to get copies of the documents that support the plaintiff’s claim that you owe money, and you believe the plaintiff has no proof, filing a response will allow you to ask the court to get the plaintiff to show the proof.

You may choose NOT to respond when:

You have no ability to pay and no defense to raise. In these cases, filing a response may result in you owing more money than the original debt. This happens because:

When you file a response, the plaintiff will generally serve you with “discovery” requests, which are legal tools to gather information and evidence to prepare for court. Discovery may involve a series of questions you have to answer, documents you must produce, or admissions you will be asked to make agreeing that you owe the money. If you do not answer the discovery requests on time, the court can order you to pay money to the plaintiff as a sanction (penalty). This is on top of the money you may be ordered to pay at the end of the case if you lose.

Also, fighting a case when you have no defense may result in a bigger judgment against you, because the other side’s court costs and lawyers’ fees may be added to the judgment against you.

As you can see, whether to respond or not is a very complicated decision to make. The only way to make sure you do what is best for you in your particular situation is to talk to a lawyer. Some legal aid agencies or bar associations may have lawyers that can help you negotiate with the credit card company or bank and avoid going to court. Click for help finding a lawyer.

Responding to the lawsuit

Once you decide you are going to respond to the lawsuit, remember, you MUST respond within 30 days from the date you were served with the lawsuit. And you need to decide how to respond since there are several ways you can:

1. You can file an answer or a general denial

Filing an answerYou can file an answer to respond to the plaintiff’s complaint. An answer is a formal statement, in writing, of your defense to the lawsuit. You can say that what the plaintiff claims is not true. Or you can say it is true but give more information and reasons to defend your actions or explain the situation. The Code of Civil Procedure section 431.30(b) explains what you should put in your answer. There are some answer forms that you can use depending on the type of case you have. Click to find the court forms. If you cannot find a form that fits your case, you can create your own answer on pleading paper.

Filing a general denialThe General Denial (Form PLD-050) can be used in certain types of civil cases, but not in others. It is a form that generally denies what the plaintiff is claiming. You cannot use the General Denial in all civil cases, so make sure you read the instructions for the General Denial carefully to make sure you can use it in your case.

With an answer or a general denial, it is very important that you write down any affirmative defense you want to tell the court. These are defenses that you want the court to consider on your behalf. For example, if you were sued for breach of contract because you canceled a home improvement contract, but you canceled the contract because the contractor was doing poor quality work, if you want the court to consider your reason for canceling the contract, you need to raise it in your answer. If you fail to raise a defense in your answer or general denial, the court may prevent you from talking about it at the time of trial. The reason for this is to make sure both sides know about the claims and the defenses in advance of the trial so they can prepare.

2. You can file a motion

In certain situations, you can respond to the lawsuit by filing a motion (a request) that usually tells the court that the plaintiff made a mistake in the lawsuit. Some of the more common motions are:

DemurrerYou can file a demurrer to tell the court that the complaint filed by the plaintiff does not meet the legal requirements to tell you the reasons why you are being sued. Sometimes a demurrer is filed when the amount of time that the law gives the plaintiff to sue you on the claim (called the “statute of limitations” has run out. By filing a demurrer you are saying that even if the complaint is true, there is no valid legal reason for you to be responsible for what the plaintiff claims you owe, and therefore you should not have to answer the lawsuit. Note: Sometimes by filing a demurrer you may be admitting that what the plaintiff says is true.

Motion to strikeThis motion asks the court to take something out of the plaintiff’s complaint, because:

It is not understandable,

It is not legal,

It repeats itself, or

It does not matter (called “immaterial”).

Give your reasons why the court should take it out of the complaint.

Motion to quash (cancel) service of summonsThis motion asks the court to say that the complaint was not served properly. Say why service was not right. Read the rules about service carefully so you can explain to the court why you were not served properly. If you win this motion, the plaintiff will probably have to serve you again and then you will have 30 more days to file a response. If you lose, the court will give you a few days to file your response.

Motion to stayA motion to stay asks the court to put the case on hold for a while, so that something else can happen. For example, if you are in the middle of a bankruptcy case, you can file a motion to stay so that the case stops until your bankruptcy case is finalized.

Talk to a lawyer! A lawyer can answer any questions you may have about what type of response would be best in your case. Each type of response has different legal implications that could even hurt your case in the future, so it is very important you understand all the consequences to what you choose to file. Even if you cannot afford a lawyer to handle your whole case, you may be able to get a consultation for limited guidance on what your best strategy is. Click for help finding a lawyer.

Filing your papers in court

If you decide to file a response, you must file it in the same courthouse where the lawsuit was filed. The address should be on the papers you were served by the plaintiff. Make sure you take your original plus at least 2 copies to the clerk’s office to file.

You will have to pay a filing fee to file your papers. If you cannot afford the filing fees, you can ask the court for a fee waiver. If the court approves your fee waiver request, you will not have to pay the fees. But if you win your lawsuit and collect costs from the other side, the court may ask you to pay back the waived fees.

Once you file your response to the plaintiff’s lawsuit, you must serve a copy on the plaintiff. You can also serve a copy of your response BEFORE you file the original with the court. Either way, make sure you file your response before the 30 days are up!

To serve the plaintiff with a copy of your response, have someone 18 or older (not you and not involved in the case), mail a copy to the plaintiff. If the plaintiff is represented by a lawyer, a copy of your response gets served on the lawyer. If the plaintiff is self-represented, it gets served on the plaintiff. The person who does this for you must fill out a proof of service by mail form. Then, make sure you file this proof of service form with the court and keep a copy for yourself.

After you file your response

If you filed a motion as your response, then follow the direction of the judge when he or she makes a decision on your motion.

If you filed an answer or general denial to the complaint, there are a number of steps before the trial. Read Before the Trial to find out what your next steps are.

Counter-suing the plaintiff

If you have a claim against the plaintiff and you want the court to hear your claim, you have to file a cross-complaint against the plaintiff at the same time you file your answer. If you do not, you will waive your claim. This may also be true for claims against third parties if they are based on the same facts and circumstances as the lawsuit the plaintiff filed against you.

For example, in a car accident case, if you are sued for injuries you are alleged to have caused someone else, but you also suffered injuries and you believe those were the fault of the plaintiff or other third parties, in order for you to get the court to award you damages for your injuries, you would have to file a cross-complaint requesting damages.

If you are adding new parties to the lawsuit, you will also need to complete a summons for the cross-complaint and have the new parties served with the summons and cross-complaint. You do not need a summons if the only persons you are suing are the ones who are suing you.

Steps in the court process

Prefiling: Starts when the reason for the lawsuit first happens, like failing to pay your credit card bill. There are a lot of things the plaintiff (the credit card company) must do to get ready before filing a lawsuit.

Filing: Starts when the credit card company fills out and files the papers to start a court case.

Response or default: Once the case is filed, you generally have 30 days to respond to the lawsuit. If you do not respond, you will be in default.

Discovery: Discovery is the process that the parties use to share information and learn about the strengths and weaknesses of both sides of the case. After you file your response, you can begin sending requests for information about the evidence that supports the plaintiff’s claim, but the plaintiff must wait 30 days after you file your answer to the complaint to formally request information from you. Defendants who are being sued over an account can serve the plaintiff with a demand for a statement on account (also called a “bill of particulars”). The plaintiff has to respond to this demand within 10 days.

Pretrial: If the parties cannot settle the case, pretrial starts about 90 days before the trial. This is when both sides get ready for the trial, get their witnesses and evidence lined up, and make important decisions about how to handle the case. During pretrial, they also have settlement conferences with the judge.

Trial: A trial can last a few hours or many weeks. It depends on how complicated the case is. It can be a jury trial or a court trial, depending on the type of case and on what the parties choose. Most collection cases are heard by a judge without a jury and take a few hours. These are called “short cause matters” because they take less than a day. Because of crowded court calendars, even short cause matters may have to be continued (postponed) from the original trial date because no courtroom is available, so parties must be prepared to return to court, sometimes several times, before the trial actually begins.

Posttrial: This means after the trial. This is when either side can appeal or collect the judgment.